As a veterinarian, if a pet-owner comes to you with questions or concerns about the safety of hemp or CBD infused pet products, are you prepared to navigate the conversation?
Practicing veterinarians are subject to the regulation of several entities, both state and federal, including the FDA, the DEA, and their respective state veterinary and pharmacy boards. Given the complexities of the laws regulating cannabis products at the federal and state levels, in addition to the independence that state boards have to control the intricacies of practice, it can be difficult for veterinarians to know what to say to pet owners, or if they can even say anything at all.
Meanwhile, the marketplace for cannabis pet products is exploding. Pet owners are left with a lot of purchasing options and questions about the safety, dosage, and effectiveness of these new products. While research about the safety and efficacy of cannabis pet products is ongoing, more robust, peer reviewed scientific evidence is needed to support labeling claims that such products prevent, mitigate, treat or cure a condition in animals. Under current FDA policy and regulations, such products would be considered an unapproved use of animal drug and veterinarians who administer, prescribe or recommend such products, including CBD products would be subject to disciplinary action.
While it may be clear that veterinarians cannot prescribe CBD pet products to clients, are there restrictions about what veterinarians can with their clients? In a crowded market, it seems natural that pet owners would turn to their veterinarians for guidance. A survey conducted by the Veterinary Information Network confirmed this; 63% of veterinarians surveyed said clients ask questions regarding cannabis pet products on a monthly, weekly, or daily basis.
While such discussions could arguably be protected under the First Amendment (see below), there has been guidance in some states (through regulation) whereby such discussions are expressly permitted or prohibited.
State Veterinary Medicine Boards
For example, since September 27, 2018, California prohibited the state veterinary medical board from disciplining or denying, revoking or suspending the license of a veterinarian for discussing the use of cannabis pet products with pet owners. In order to receive the protection of this legislation, there must be an existing veterinarian-client relationship, and the veterinarian must document the discussion in the patient’s medical records. That documentation must include evidence that the veterinarian discussed: the variability of cannabis products, that there is no oversight of product concentrations, and there is a lack of research and potential side effects that pets may experience. It is important to remember that this only protects the discussion; veterinarians are still currently prohibited from dispensing, administering or recommending cannabis products.
Similarly, Michigan recently amended the state Public Health Code to allow licensed veterinarians to consult with an animal owner on the use of marijuana or industrial hemp on the pet. Like California, Michigan’s update does not address actions beyond the “discussion” phase. However, on the other end of the spectrum, New Hampshire prohibits veterinarians from discussing cannabis use in pets with their clients. Veterinary boards from New Jersey and Pennsylvania have no published positions or policies on record.
Speech Regulation Concerns
Of additional concern are the potential implications of state veterinary boards’ regulation of professional speech. Generally, regulations of professional conduct that are part of a state’s licensing scheme are acceptable; however, the regulation of professional speech is much more complex. Currently, regulations of the practice of medicine that incidentally burden speech are given some level of deference and subject only to intermediate scrutiny when challenged under free speech theories. The explanation from the court in the recent case National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 1275 (2018) supports this concept. But the question remains, are the limitations on a veterinarian’s ability to discuss and recommend CBD pet products a permissible regulation of conduct, or do they cross the line into an unconstitutional regulation of professional speech? It is possible to have more concrete guidance soon; the well-known 5th Circuit Hines II case has been reversed and remanded for the district court to make a more thorough evaluation of the professional speech versus conduct concept.
In the coming months, especially as the cannabis market continues to develop, it will be important to monitor your state veterinary board’s policies and state regulations on the matter. It is likely that existing regulations, policies, and options for pet owners will continue to grow and develop with the cannabis pet product market.
To learn more about the regulation of hemp, hemp derivatives, and CBD in animal products, click here.
To learn more about labeling considerations for cannabis pet products, click here.
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